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Turnout in the 2012 Elections and Shelby County: A Response to Roger Clegg

At Bench Memos, Roger Clegg argues that the information recently released by the Census Bureau concerning voter turnout in the 2012 elections provides further evidence that the Voting Rights Act’s preclearance requirement – in many ways the heart and soul of the Act – is unconstitutional and should be struck down by the Supreme Court in Shelby County v. Holder. Clegg relies heavily on the fact that African American turnout was highest in some of the states covered or partially covered by the Voting Rights Act, including Mississippi and North Carolina, and that some non-covered jurisdictions had lower African American turnout. Clegg, of course, never even mentions the Constitution, which explicitly gives to Congress the power to enact prophylactic legislation, like the Voting Rights Act, to prevent and deter racial discrimination in voting. Even on its own terms, Clegg’s argument does not withstand analysis.

First of all, Clegg ignores the obvious. African Americans voted in high numbers in 2012 because they wanted to help ensure the re-election of Barack Obama, the nation’s first African-American president. This turnout, in fact, would not have been possible without the Voting Rights Act, which played a critical role in preventing the enforcement of newly-enacted state voter suppression efforts designed to keep citizens likely to vote for President Obama from the polls. Responding to a wave of new voting restrictions enacted in covered jurisdictions, including Texas, South Carolina and Florida, judges across the ideological spectrum concluded that these new restrictions would discriminate against African Americans and should not be precleared. Far from supporting Clegg, the 2012 elections show why the Voting Rights Act remains the nation’s most successful civil rights law to combat voter discrimination.

More fundamentally, Clegg misses the fact that the Voting Rights Act is not simply about increasing African American voter turnout, but about preventing all forms of voting discrimination. Like the Fifteenth Amendment, which it enforces, the Voting Rights Act prohibits all forms of racial discrimination in voting, including not only efforts to limit access to the ballot but also to prevent minorities from electing their preferred candidate of choice. In 2006, Congress renewed the Voting Rights Act by lopsided bipartisan votes – 98-0 in the Senate and 390-33 in the House – not because of turnout data, but because of overwhelming evidence of continuing racial discrimination in voting concentrated in the covered jurisdictions. While some of the forms of discrimination catalogued in the massive record compiled by Congress included efforts to suppress the vote and dampen turnout, other discriminatory voting changes sought to stifle minority voting power at the very moment that demographic changes gave minorities a real chance to exercise political power. (For more discussion, see here and here). Clegg ignores Congress’ sweeping constitutional power to end all forms of racial discrimination at the ballot box and guarantee the Fifteenth Amendment’s promise of a multiracial democracy open to all regardless of race.